DAYTON — A Kettering woman alleges in a lawsuit that she was fired for voting for President Obama, a charge the company denies.

Patricia Kunkle is seeking in excess of $25,000 from Dayton-based defense contractor Q-Mark, Inc. and its president and owner, Roberta “Bobbie” Gentile, in a suit filed in Montgomery County Common Pleas Court. (

Kunkle’s lawsuit claims Gentile threatened employees with termination last year if President Obama was re-elected and that Obama supporters would be the first to be terminated if he were re-elected. Kunkle’s suit said her voting preferences came up in conversation the day after the election and that she was fired Nov. 9 for what the suit claims Gentile said was in the “best interest of the company.”

“Whether you’re a Democrat or a Republican, taking it to the extreme of impairing somebody’s career because they disagree with your political choices is just wrong,” said Kunkle’s attorney, Karen Dunlevey. “We’re hoping that the court will recognize that and adopt a public policy exception for her.”

Gentile’s attorney, Brian Wildermuth, disputed the lawsuit’s premise.

“Ms. Kunkle was laid off for economic reasons – nothing more,” Wildermuth wrote as part of a prepared response to the Dayton Daily News. ” I am sure you and your readers are familiar with the ongoing uncertainties regarding defense spending, and thus the economic environment confronting defense contractors. The allegation that Q-Mark discharged Ms. Kunkle because of her vote is simply false.”

Wildermuth said Kunkle’s position was not filled.

The suit claims Kunkle started as a temporary worker with the small company in April 2012 and became full-time in May 2012. It also says she performed her duties “efficiently and effectively,” never received any disciplinary action or negative performance evaluations. The suit also said Kunkle was paid $12 per hour, was not paid overtime for hours she worked in excess of 40 hours and is not exempt from OT pay requirements under the Fair Labor Standards Act.

The suit also said Gentile engaged Q-Mark employees in conversations aimed at discovering employees’ political affiliations and repeatedly disparaged Obama supporters.

Dunlevey said she typically represents employers in employment litigation but made an exception for this case, which pits at-will employment against Ohio Revised Code 3599, which guards against employers’ intimidation, coercion and retaliation involving elections.

“This case, if they find in our favor, will be making new law,” Dunlevey said. “But there is what’s called wrongful termination/violation of public policy in employment law cases.”

Not being familiar with Ohio law, I’m not going to hazard a guess as to the legal viability of the claim in this case. However, it does seem quite obvious that Kunkle has a significant proof problem here. Unless there’s written evidence somewhere corroborating the allegation that she was fired because of who she voted for, and I tend to doubt that there is, then this is going to boil down to one person’s word against another person’s. Beyond that, there’s the question of whether being fired for political opinions is even actionable under the law. In an at-will employment state such as Ohio, employers are free to fire employees for any reason so long as it’s not a reason barred by applicable Federal or State anti-Discrimination Laws. While ORC 3599 arguably comes close, the statute in question only provides that an employer would be find no more than $1,000 for a violation. There doesn’t appear to be any remedy under this law for back salary or authority for the Court to order the complaining employee to be reinstated. In the end, even if she proves a violation, Kunkle appears to be without any viable remedy.

About Doug MataconisDoug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway.
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In the end, even if she proves a violation, Kunkle appears to be without any viable remedy.

That might be true in the general case, but you’re forgetting Q-Mark is a federal contractor, which means there subject to all sorts of federal regulations prohibiting contractors from discriminating on the basis of political affiliation. She really ought to be suing them in federal court.

Her employer was explicit about the companies political views and the passion with which it held those views.
She let her opposing views be known in spite of that.
I say she was actually fired for being stupid.
Don’t make it right…but that’s the bottom line.

Exhibit “A” in support of the need to grow unions. Organized capital unrestrained by organized labor plainly leads to exploitation and further stratification as capital engages in a race to the bottom.

I’d sooner gouge out my own eyes with rusty forks than to engage in legal research for no reason, and no pay, so accordingly I won’t opine about what Ohio law says or doesn’t say.

Here in the People’s Republic of Kalifornia, however, we have a judicially-created tort known as wrongful termination in violation of public policy. For example out here you can’t fire people because they join a union or because they attend a political protest or because of the person for whom they vote. Many states have similar case law principles. Ohio could be one of those states. Or perhaps not.

A few other things are worth mentioning, however, because often there are vast discrepencies between what the law says or doesn’t say and what judges and juries decide.

Juries can and often do nullify in hot button cases. Judges often unplug their brains when they realize how they rule in noteworthy cases impact their chances of being reelected or elevated to higher courts.

The county forum for that lawsuit includes the City of Dayton. Sort of an old school, union-Reagan Democrat municpality. The seat of the county is in Dayton. This woman is saying she was fired for voting for Obama. Obama won Montgomery County pretty much by the same margin by which he won Ohio, but it goes without saying that in Dayton proper Obama’s margin would have been far greater.

IOW, even if there is no such cause of action under Ohio law that doesn’t mean the plaintiff’s case does not have potential value, either settlement value or value in a jury trial in largely a Democrat city. And it doesn’t mean that a judge actually will in any event follow the law and dismiss the case. And if Ohio does have something along the lines of wrongful termination in violation of public policy then that lawsuit nearly by definition is worth medium 5 figures to settle. Perhaps more.

It’s strange that she went from temporary to full-time in short order, and then was layed off just a few months later. However, if it is true that nobody has been hired to replace her, then it seems to support the assertion that her layoff was a business decision and not politically motivated.

The argument that an employer would fire an employee because the employer learned the employee voted for a certain candidate seems far fetched to me. The employee’s vote would not have changed the outcome of the election, and the employee’s voting behavior certainly is not going to change in future elections after being fired. So looking at it from the employer’s self interest, it makes no sense to incur the costs of interviewing, hiring and training a new employee if the current employee is performing up to expectations – regardless of how the employee voted.

As Doug put it, this is a “he said/she said” (or, more accurately, “she said/she said”) case. One thing he didn’t mention was that several companies said before the election that if Obama was re-elected, the employer would necessarily have to make some very uncomfortable cutbacks. This company — a defense contractor — is looking at losing serious revenue, partly from sequestering, partly from Obama defense cuts. So they cut their workforce.

I agree with Doug, she’s pretty much SOL, even if she proves her case. And on the broader principle, I also agree with C. Calvin. Too many people are unaware that while the Constitution guarantees us freedom of speech, is does not guarantee there will be no consequences when we choose to exercise that right.

If you know your boss is strongly anti-Obama, and you’re also well aware that your boss has the power to fire you from your job, well then it woud be pretty dumb to volunteer who you voted for.

Like C. Calvin, I’m not saying it’s right, and as rudderpedals said, a strong union might be a better remedy than the court system to resolve sitations such as this … but baring that, keeping our political/religeous views to ourselves in the workplace is almost always the prudent thing to do.

There was a case a few years ago (during the 2008 election cycle, if I remember correctly) where a woman in Alabama (I lbelieve) was fired for having a political bumper sticker on her car that was at odds with her employer, and parking said car in the parking lot at work. Her firing was upheld.

For all the imaginary left-based class warfare here’s an instance of actual class warfare as practiced by the monied folk in delightfully named “Right to Work” states, up to and including the typical victor and loser, and the absence of an effective remedy to right the wrong.

The argument that an employer would fire an employee because the employer learned the employee voted for a certain candidate seems far fetched to me. The employee’s vote would not have changed the outcome of the election, and the employee’s voting behavior certainly is not going to change in future elections after being fired. So looking at it from the employer’s self interest, it makes no sense to incur the costs of interviewing, hiring and training a new employee if the current employee is performing up to expectations – regardless of how the employee voted.

The employer’s action can be understood as sending a message to all the other employees who remain. Despite what can and cannot be proved in Court, the employees know the inside scoop: they work there. If the plaintiff believes her employer requires voting the management’s stated wishes to the point of firing those who do not comply, so probably do many employees. All these parties are in a position to know.

* * * * *

Secret ballots exist for a reason. Back before ballots for elections were secret (and there was such a time), employees could do nothing but vote the way their employers told them to. The next time you see anyone trying to chisel out of anyone else how he voted, you might want to intervene and say, simply, “Elections in this country are conducted by secret ballot for a reason.”

It was over a hundred years ago, but the right to a secret ballot had to be fought for and won against those who thought otherwise. Let’s not let the effective substance of that right slip away.

@Stormy Dragon: “That might be true in the general case, but you’re forgetting Q-Mark is a federal contractor, which means there subject to all sorts of federal regulations prohibiting contractors from discriminating on the basis of political affiliation. She really ought to be suing them in federal court. ”

Excellent point, and I’m sure that the guys need a good, ah, audit. By some rather sadistic federal auditor with a zealous work ethic.

@Groty: “So looking at it from the employer’s self interest, it makes no sense to incur the costs of interviewing, hiring and training a new employee if the current employee is performing up to expectations – regardless of how the employee voted. ”

@Gromitt Gunn: “There was a case a few years ago (during the 2008 election cycle, if I remember correctly) where a woman in Alabama (I lbelieve) was fired for having a political bumper sticker on her car that was at odds with her employer, and parking said car in the parking lot at work. Her firing was upheld.

I don’t really see how this is any different. ”

(a) The difference between a federal contractor and a purely private party
(b) That was in Alabama.